Four Things Judge Emmet Sullivan Should Do in the Wake of Flynn’s Pardon

As I noted, Trump attempted to be expansive with his pardon of Mike Flynn. He failed. I think the chances that Flynn does prison time are almost as high today as they were last week.

And while I think there is absolutely nothing defective in the pardon that Trump signed and while I’m certain that Judge Sullivan will honor that pardon (though DOJ is asking him to dismiss the charges with prejudice; Sullivan should dismiss them without prejudice), there are four things that Sullivan has the means of doing to raise the cost of Trump’s pardon. Those are:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

Make Trump name Flynn’s crimes

While whoever wrote this pardon tried (but failed) to make it comprehensive, it only names one of Flynn’s crimes: false statements (indeed, that’s the only crime that DOJ lists for the pardon on its website).

But by moving to withdraw his plea, Flynn put his other crimes before Judge Sullivan. So Sullivan has every right to inquire whether this pardon includes all of Flynn’s crimes. He could issue an order for Trump to come before him to answer whether the pardon forgives Flynn for:

  • His lies about what he said to Sergey Kislyak during the transition
  • Serving as an undisclosed Foreign Agent for Turkey
  • Lying about serving as an undisclosed Foreign Agent for Turkey
  • Conspiring with others to hide that he was an undisclosed Foreign Agent of Turkey
  • Lying about his own guilt and the circumstances surrounding his guilty pleas
  • Lying about lying to Flynn’s Covington lawyers

The answer to all those questions is yes. Trump does mean to pardon Mike Flynn for secretly working for Turkey while getting classified briefings. Trump does mean to pardon Flynn for lying to Sullivan (and he does know that Flynn did lie to Sullivan). Sullivan has a need to know that explicitly and he should get Trump on the record.

Trump won’t show, of course.

Until he is made to, after January 20th.

Note, I’d also make Trump state, under oath, when he signed the pardon. It is dated with Wednesday’s date, but I highly doubt that DOJ had it written by then. If Trump signed it after having lunch with Mike Pence yesterday, it’s possible that Trump didn’t write it this broadly until broaching a pardon for himself with Pence.

Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon

Judge Sullivan also has reason to want to know if someone offered Trump something of value for this pardon. He has evidence they did — in the altered documents designed to serve as a campaign attack on Joe Biden. And the news is full of evidence that Sidney Powell may have offered further benefit, in her efforts to challenge Trump’s election loss.

Sullivan should put both Flynn and Powell under oath and require that they confirm or deny whether they have offered favors to Trump for the pardon.

They won’t show, of course.

Until they are made to, after January 20th.

None of this would invalidate the pardon, of course. But if Trump got some other benefit from Flynn’s lies that went into this pardon, especially efforts to undermine a legal election, then the Attorneys General in those states that already investigating Trump’s efforts to steal the election would have reason to want to know that, and Sullivan has the means to get them under oath to do that.

Force DOJ to explain what went into the altered documents

People at both FBI and DOJ altered documents submitted in Sullivan’s court, the FBI by adding false dates to exhibits and DOJ by redacting footers indicating that the documents were covered by the protective order. Sullivan has reason to ask how that happened and who was involved in the effort.

Even if Trump pardoned everyone involved, there would still be a means for Sullivan to punish most of those involved, because most of those involved have law licenses and can be disbarred.

Sullivan should schedule a hearing — no need to rush, he might as well schedule it for January 26, after everyone involved gets a COVID shot — to ask the following people if they had a role in altering the documents (or eliciting a corrupt interview with Bill Barnett):

  • AUSA Jocelyn Ballantine
  • AUSA Sayler Fleming
  • AUSA Ken Kohl
  • US Attorney Jeffrey Jensen
  • FBI Executive Assistant Director John Brown
  • FBI Agent Keith Kohne
  • Acting DEA Administrator Timothy Shea
  • AG Bill Barr
  • DAG Jeffrey Rosen

Again, most of these people have law licenses that Sullivan could put at issue, and he has good reason to want to hold someone accountable for altering documents in his court.

These people won’t want to show. But after January 20th, they may have no way of avoiding it.

Identify who wrote the pardon

In his confirmation hearing, Bill Barr said that pardoning someone for giving false testimony would be a crime. Trump just committed that crime. Whatever lawyer wrote up the pardon language — whether it’s Barr or White House Counsel Pat Cipollone — just conspired to commit a crime.

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

61 replies
  1. Bo Bo says:

    Great post, good points, your typical logical, timely, and accurate analysis — thanks.

    I am cautiously hopeful that after January 20th DOJ will do the right thing to protect our democracy/republic from tRump-like coups. I pray no one kids themselves: tRump and his tRumpist-enablers came very close to creating essentially a dictator.

    I am not optimistic that the rigged SCOTUS would have stopped this and I do not buy the line that somehow Justice Roberts would have taken meaningful action to preserve the integrity of the court under his watch.

    If others disagree with my perspective, fine. I would love to feel differently about the ongoing national nightmare. I pray that we are not given the “look forward” crap; which is pure propaganda and has empowered republican criminality since Richard Nixon.

    • Stacey says:

      It would be hard to overstate how strongly I AGREE with that last notion, that we can not do the “look forward” thing here!!!!

      I heard Chuck Rosenstein, whom I generally like, say on an MSNBC show today that he wasn’t looking forward to some years of discussing Trump’s crimes and he was promoting Ford’s idea of ‘moving on for the good of the country’. I lost it!!!

      People have gone into WitSec for the rest of their lives after testifying against mobs. Women risk death to prosecute abusive husbands. Young girls and boys testify in court decades after incest or sexual abuse cases happened to bring abusers to justice. People all over this country have risked a hell of a lot more than emotional exhaustion or annoyance to bring criminals to justice on no more basic motivation than to keep them from doing this to someone else! For a former prosecutor to commit such a betrayal of every witness he ever talked into ‘doing the right thing’ for one of his cases by saying he thought it’d be too high a price to pay that he or we have to suffer the annoyance of one more day of a Trump news cycle after Jan 21, 2021!

      Someone else said that “we look like a banana republic if we go after the last administration”. What the hell do we look like if we enshrine this type of rich white guy privilege into our laws? If we literally enact defacto policy that if Donald Trump commits all manner of crimes, white collar and several plausible rape and sexual assault accusations, and how many cases of Negligent Homicide do we think he’s up to right now for his Covid response that he just walks because he screams too loudly when you poke him? WTF? How can we have a society where kids sit in prison for years for a dime bag of weed and there seems to be nothing this asshole can commit over the course of his sorry miserable criminal life that gets him a single damn consequence. It’s just unsustainable!

      • solo says:

        Yes. This moment is monumental.

        We are on a trail in the deep woods but have missed a turn and somewhere dropped our only knife – a strong sharp tool passed along by ancestors. Turning around – finding the right branch in the trail, and recovering that precious knife – that is what matters most.

        The turning around is not going backward. It is not a regression or a reversal. It is simply the new forward.

        • LeeNLP says:

          This comment reminds me of words by CS Lewis in The Great Divorce about the impossibility of mistakes just righting themselves without going back and fixing the problem:

          “I do not think that all who choose wrong roads perish; but their rescue consists in being put back on the right road. A wrong sum can be put right: but only by going back till you find the error and working it afresh from that point, never by simply going on. Evil can be undone, but it cannot ‘develop’ into good. Time does not heal it. The spell must be unwound, bit by bit, ‘with backward mutters of dissevering power’—or else not. It is still ‘either-or’.”

    • EricB says:

      IANAM(oderator), but can we skip name-calling, please? The othographic poo-flinging is unworthy of this blog.

      • Rayne says:

        As an actual moderator — one of two women here with potty mouths — I have no idea to what “orthographic poo-flinging” you are referring.

        And as an actual moderator, if there’s some poo-flinging to be dealt with, the mods will handle it if it’s inappropriate — when aimed at community members in particular it’s out of bounds.

        • EricB says:

          I was refering to the use of “tRump” above. But I was out of place to play moderator – my apologies.

      • bmaz says:

        Who the fuck are you to tell us what “is worthy of this blog”? We will determine that, not you.

        Also, are you going to put yourself up as “EricB”, or “Budd”? Because you will have to pick one or the other and not sock puppet the readers here.

  2. John Langston says:

    As I said in an earlier post, I’d like to see Flynn on the stand spilling his guts. The Judge and the American people have a right to know what the hell happened and why. Flynn should tell the truth or face Contempt or Perjury. The crazy lawyer should be held accountable as well. Hopefully the Judge will get to the bottom of the whole thing. After all, he is a judge.

  3. BobCon says:

    I’m curious how the Trump camp’s attitude toward blowing off courts will play out after January.

    I have to assume they will continue the craziness of the election challenges once the demands for testimony and evidence heat up, and I’m not sure how eager a lot of judges will be to force Trump himself to comply. I can’t rule out the Supreme Court conservatives endorsing some absurdly broad concept that executive privilege begins at conception and continues until death plus 75 years.

    But they may keep their powder dry in anticipation of cases against Biden, and I wouldn’t rule out Fed Soc types deciding Trump has outlived his usefulness and wanting him out of the picture.

    Judges jumping into the headlines in confronting Trump may take away the impetus behind calls for Biden and DOJ to forgive and forget. Just the possibility should be a reminder to pundits to stop assuming they know how events will play out (they’ll ignore it).

    • earlofhuntingdon says:

      Trump’s criminality is so blatant, he begs to be prosecuted. It would be unjust not to give him what he wants. Not prosecuting him would normalize his crimes: his behavior would spread like a California wildfire among his would be replacements. Past norms were built on different conduct. For Trump, they should be discarded.

      Trump’s uses vexatious lawsuits to overwhelm and intimidate his critics and to hide his frauds and other crimes. The minute he gets close to trial or his opponents get close to discovery, he folds like an accordion. The GOP’s worry is that if he gets into real trouble, he will take its leadersheep down with him. Georgia is a good example.

      • BobCon says:

        I agree that prosecution needs to happen, but what I’m trying to puzzle through is the way this plays out.

        Presumably most of what the Biden administration does will have a leadoff period of largely behind the scenes investigations.

        Trump’s strategy will be to try to paint himself as a victim of Biden’s revenge scheme. But if Biden’s DOJ is initially in evidence gathering mode, and the media focus is on state AGs, civil suits, and potentially judges like Sullivan wanting to know what the hell is going on, then the Biden connection is a lot harder to make.

        Trump will still bray about a Democrat conspiracy, activist judges, and out of control lawyers. But I think the effort that is brewing in the Beltway circles to put a lid on prosecutions — or even investigations — will struggle in this environment.

        There are a lot of dumb pundits out there, but at least many aren’t quite dumb enough to equate Biden with a judge or state AG.

        • Ruthie says:

          The right will bray about a Democratic conspiracy if a windstorm lifts Trump’s combover after Jan 20, never mind if there’s any attempt to investigate/prosecute his many crimes – truth or facts be damned. We can’t control how they or the media react once Biden is in office, but we can and should still pressure our Congressional reps to take a sober look, to investigate and to speak forthrightly about the corruption and criminality that’s uncovered. Hopefully Biden’s pick for AG will have a similar attitude.

        • Max404 says:

          My French is pretty good but I was stumped by com-bo-ver (“com-boh-vay”) something to do with cows I thought, until I looked it up. Anyway I propose it as a new gallicism, “to be with cows”.

  4. SaltinWound says:

    Is the pardon written to try to protect Flynn if he lies in the future, after the pardon, when he loses 5th amendment protection? Is that possible?

      • SaltinWound says:

        Thanks, that’s what I thought. To a non lawyer reading this, language like “or that might arise” seemed like it’s trying to cover not just charges based on past behavior but future behavior. Glad to hear it’s not possible.

      • BobCon says:

        I wouldn’t put it past someone in Trump’s orbit to try, though.

        I’m halfway convinced Trump will pull a pardon out of his pocket in 2023 and claim he secretly wrote it January 19 2021.

      • Chris.EL says:

        Amid all of these swirling events a voice of reason from nearly two years ago!

        Sam Berger writes in just
        reported by New York Daily News, via Snyde [“Howard Stern would be ‘honored’ if president-elect Joe Biden adopts one of his cats”]

        Howard Stern proposes the nouveau Biden administration adopt one of their fostered rescue felines.

        Turns out *Stern’s lovely wife Beth* is the North Shore Animal League spokeswoman, active in the animal rescue group!

        Oh! Maybe the Bidens could adopt a Manx (from the Isle of Man), preferably a “rumpy” and name it “Rumpy”! Tee-hee.

        Carry on.

      • SaltinWound says:

        I read a little more. A president can’t pardon future crimes. That’s clear. But he does seem to be trying to muddy the waters a little with the sweeping “that might arise” language. He did it with Arpaio too.

    • John Langston says:

      After accepting a pardon, the individual has no 5th amendment rights, since he can’t be prosecuted for the crime. So if an investigation needs his testimony, he’d have to give it or potentially face contempt charges. If he testifies untruthfully he can face perjury charges. Now, if the pardon is sham, then the parties could face obstruction of justice, extortion, bribery, conspiracy, etc.

      I’d think a continued investigation is certainly warranted based on public knowledge of corruption and national security. So, Trump at least in theory cannot save himself if all the folks he’s pardoned could be compelled to implicate him with no 5th amendment protection

      • bmaz says:

        Unless there are state level offenses for which the 5th Amendment privilege may still may hold. None of this is that cut and dried.

  5. Chris.EL says:

    only made it about halfway through Marcy’s essay when feeling of Trump’s retaliative spectre flooded over me. We all know what happens to those who dare stand up to Trump!

    Hope it won’t be so. We must persevere, again.

  6. joel fisher says:

    It’s interesting to consider: Trump sits down with an experienced criminal lawyer who tells him:

    1) You’ve got serious criminal exposure for federal crimes going back a long way; a pardon from a President Pence fixes that;
    2) However, the pardon removes most–but not all–5th Amendment privilege and a pardon can’t excuse future behavior; you’ll have to talk;
    3) Every time you take an oath, you’ll be committing perjury or contempt within minutes;
    4) Everybody you pardon–Including the General–instantly becomes a potential witness against you;
    5) The State of NY is looking at you like a fat guy looks at cake;
    6) In the absence of a pardon, litigation in your various cases could go on for years.

    It’s a close call, but at the end of the day, I’m not so sure Trump would want to clearly shed 5th Amendment privilege by getting a theoretical President Pence pardon and might, then, self-pardon. So what if the validity of such a thing is unclear? It’s that very lack of clarity that an ex-POTUS wants: it might take a year or two for the courts to sort out the whole self-pardon issue. Meanwhile criminal prosecutions are on hold and there’s plenty of taking the 5th.

    • Peterr says:

      Re #3, you can add “or you will be making admissions against your own interests even more quickly.” Trump’s video deposition in his lawsuit with Geoffrey Zakarian was a trainwreck to watch if you are contemplating defending Trump in the future. (If you are the opposing counsel, however, it just makes your mouth water.)

      • Stacey says:

        Does anyone know if a pardon is received by anyone which wipes their federal crimes clean and carries with it the acceptance of guilt by accepting the pardon can a state prosecutor use that acceptance of guilt in the federal crime to aid in prosecuting a similar state crime?

        You admitted your guilt in federal crime A, and state crime A is virtually identical, have you not now made that prosecution easier?

      • Sandor says:

        Agree. I am not “fat”, though I do love baked goods of all kinds (as a Hungarian, I eat bread with my bread!) … but I do have strabismus (“crossed eyes”), and so can relate to the sadness that comes with being judged unfairly by one’s appearance.

        • P J Evans says:

          Bread is a fine thing – not always, but usually – and I am supposed to not eat a lot of it. Or pastries or cookies (aka biscuits), which I love. (The permanent low-carb diet.)

      • joel fisher says:

        I know how a fat guy looks at cake; I’ve seen one in the mirror behind the cake display at the bakery. The wording is important; I could have said “How a vegan looks at kale”, but it wouldn’t have captured the idea.

  7. Peterr says:

    With regard to the altered documents, Flynn’s pardon does not change the fact that someone at DOJ appears to have perpetrated a fraud upon the court, and Sullivan is not just within his rights to determine who that was, but to followup with sanctions if this can be established as purposeful and not a mistake.

    [Spoiler: it was purposeful as hell.]

    I’ve said it before and I’ll say it again: Sullivan does not take kindly to officers of the court misusing their authority. No, he takes it rather personally when someone stands before him and swears that they didn’t eat the last brownie when they’ve got chocolate smeared all over their cheeks. Altering the documents was their first mistake, but submitting them and lying to Sullivan about them was their second — which may prove more costly.

    Or it may force Trump to wield that Pardon Pen again, for his entire DOJ. But he’ll have to be careful how he words that, so he doesn’t inadvertently pardon terrible horrible DOJ folks Jim Comey, Andrew McCabe, Peter Strzok, Lisa Page, or any of the Deep State Lawyers he knows are lurking just out of sight.

    • Rugger9 says:

      Judge Sullivan might be the last judge one would want to try gaslighting, because of his Ted Stevens trial experience, general skepticism of US Government claims noted in other cases (he is famous as an independent thinker) and other stuff. Add to that the blowing off of his orders in the USPS case and (IIRC) it was his order that CPB/DHS ignored to send 33 unaccompanied kids with valid asylum claims back to Guatemala (claiming they weren’t told by superiors) and then left them there when the DHS did know.

      It means that not only in Flynn’s case but as a general policy the WH has decided to diss a federal judge who just might want some heads on legal spikes.

  8. Rugger9 says:

    Judge Sullivan would still need to schedule the hearing, and I would expect that DOJ wants it done on an expedited basis to get the books closed officially on Flynn (or so the WH would think).

    Am I correct that the conspiracy to render Gulen to Erdogan’s tender mercies is not one of the pardoned actions? At the very least, Judge Sullivan should condition his approval (if he can) on open, honest and complete answers to the questions raised by EW and order that the briefs include those answers. Since Judge Sullivan has evidence to show the pardon was potentially intended for a corrupt purpose he can ask for this. I don’t know how long that process must take, but I can’t see AG Barr agreeing to any delay past Inauguration Day.

    If Judge Sullivan doesn’t get his data, then every name on Item 3’s list (plus Parnas, Firtash, Sater, Page, Papadopoulous, Prince, DJT Junior, etc.) should be hauled in to the House committee to explain themselves under oath for their roles in all of this. Since Flynn would be precluded from taking the 5th any lies would be a crime and any obstruction by poor memory would get a contempt citation.

    IANAL, but the reviews from those who are appear to be that this was slapped together after DJT announced he was pardoning Flynn. As chaotic as this WH is, I doubt anyone prepared plan B docs when it was apparent after the en banc DCC ruling that Powell’s mandamus gambit was a dead letter. DJT then demanded that a pardon be done to cover his own butt, and maybe that’s why AG Barr has been invisible, because there was so many things to cover up. It’s a cinch the list is not complete.

    • chicago_bunny says:

      You asked, “Am I correct that the conspiracy to render Gulen to Erdogan’s tender mercies is not one of the pardoned actions?”

      I think the pardon language would arguably include that among the covered actions. The last clause of the pardon extends it to “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.”

      Flynn’s son was purportedly part of that plot. I wonder if we’ll see a Trump pardon for him as well.

      • Rugger9 says:

        That angle for Flynn’s son is one that might leverage more cooperation from General Flynn, but if Biden is smart, he will not tip his hand until January 20 at 12:30 or so. It’s an example of missed details that are important.

      • EricB says:

        I would love some expert discussion on how specific a pardon has to be. That phrase quoted by chicago_bunny reads to my mind as “any and all offenses related to, you know, stuff, and stuff related to things”. Certainly there can’t be objective agreement on the scope when stated with that much hand-waving?

  9. sand says:

    IANAL. Since the language of the pardon is less than a blanket covering “all crimes” period, couldn’t Flynn simply plead the fifth to questions under the theory that there could be some crime not covered by the pardon? He wouldn’t have to say what he thought that crime might be, because doing so would serve to incriminate him. Even if Congress or a court were to hold him in contempt, better for Flynn to say nothing and litigate the contempt charge on the constitutional question?

    I imagine that the limited amount of law on presidential pardons makes guidance in this area circumspect in general.

    • earlofhuntingdon says:

      No. The pardon power is exclusive to the president.

      What recipient would volunteer to be a test case, only to find out later that the pardon was invalid because of a faulty attempt to delegate authority?

  10. Norskeflamthrower says:

    Is there any way that Rod Rosenstein could get pulled into the undressing of the DOJ pardon blow-up doll? I’m sure he will avoid any criminal charges because as Grampa Ole would say: “He’s as slick as greased owl manure” . But what about getting his early actions to restrict or strangle the Mueller investigation, could we at least see him publicly exposed down to his skivvies?

    • earlofhuntingdon says:

      Standard route, it seems, to regain enough street cred to keep the wingnut welfare coming after he leaves office. Not that he needs it, except for his ego.

      Perhaps he also sees what’s coming as Trump prepares to go postal before he’s evicted. It must be hard for him be on the receiving end of what he tells himself is the undeserved cruelty he (and Kushner) has inflicted on thousands over the years. SAD.

    • N.E. Brigand says:

      If Barr says there’s no voter fraud, does that put him in a legally safer place if the pardon to Flynn was issued as a quid pro quo partly in exchange for Flynn and his lawyer making claims of voter fraud?

      Also, was Barr holding onto the Durham news (which by the reasoning of his letter to the Congressional judiciary leaders could have been released at any point after Nov. 3) as some red meat he could throw to the base when it came time to state there was no election fraud? (Also, in a twisted way, I suppose he could claim that he held it until the election was definitely over, by which he would mean that he had determined to his own satisfaction that the election was fair. And given how much he’s previously seemed to buy into right wing propaganda, maybe he really did suspect fraud.)

      Or were both items meant to distract from the pending news of the bribery investigation?

    • P J Evans says:

      (For those who haven’t seen it, Powell’s lot cropped the seal and certification from an image of the doc.)

      • earlofhuntingdon says:

        Since that is evidence of the source and authenticity of the document, it’s a very strange thing to do. It’s also a material alteration that should affect its utility in the proceeding. It’s past time to make wannabe lawyer Powell do it right or do it over – or give up her case for failure to prosecute it.

        • Rugger9 says:

          I would add a $$$ sanction or two and a referral to her Bar to go after her license. Since the manipulation is critical to Powell’s claims it is not a trivial matter and she needs to be hammered for doing it.

          If stuff like this is let go, the court system would become a wreck.

        • Valley girl says:

          I’ve been thinking about Sidney Powell and her strange behavior- to me she has that kind of “Don Jr. and Kimberly go to the GOP convention” vibe about her. Is she coked up? Or whatever the correct phrase is?

  11. vvv says:

    I love that the link is “…/2020/12/01/three-things-judge-sullivan-should-do/” and the title is “FOUR THINGS …”. (Drafted a doc 6 times myself in the last few days.)

    But I especially love the analysis.

    I want to add that, not only can there not be a pardon for future conduct, there cannot be a pardon for ongoing conduct contemporaneous with the pardon. And I read somewhere that if a dangled pardon can be proved part of a q.p.q., that would be an ongoing crime.

  12. CD54 says:

    Anybody here want to guess how Trump and his flying monkeys will attack Federal Judge Sullivan? Come on! I know you can do it — it’s right there in his picture.

    Hint: “Central Park 5;” “Birtherism;” Voter fraud in “Detroit, Philadelphia, Atlanta, Chicago, Milwaukee.” Come on, you can get it — it’s right there in front of you!

    Just don’t ask John Roberts. He can’t see it.

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